Kerala High Court
Diana Peter Alias Diana Gomez vs Commissioner Of Income Tax (Appeals) on 13 September, 2024
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
WA No.1212 of 2024
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2024:KER:70130
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
FRIDAY, THE 13TH DAY OF SEPTEMBER 2024 / 22ND BHADRA, 1946
WA NO. 1212 OF 2024
AGAINST THE ORDER/JUDGMENT DATED IN WP(C) NO.42345
OF 2023 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
DIANA PETER ALIAS DIANA GOMEZ
AGED 64 YEARS
W/O PETER PEREIRA, AGED 64 YEARS RESIDING AT
JULIE LAND, MUDIYAKODE, CHERUNNIYOOR VARKALA,
THIRUVANANTHAPURAM ,695142, PIN - 695142
BY ADVS.
S.GOKUL BABU
ARUN M.V.
GAADHA SURESH
KESHAVRAJ NAIR
M.ANIL PRASAD
PARVATHY NAIR
VISWANATH JAYAN
RESPONDENT/RESPONDENT
1 COMMISSIONER OF INCOME TAX (APPEALS)
AAYKAR BHAWAN, 1ST FLOOR, KAWDIAR PO
THIRUVANANTHAPURAM, KERALA, 695003, PIN - 695003
2 ASSESSMENT OFFICER
OFFICE OF THE INCOME TAX OFFICER WARD 1(1),
AAYKAR BHAWAN, KOWDIAR, P.O THIRUVANANTHAPURAM,
KERALA, 695003, PIN - 695003
WA No.1212 of 2024
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BY ADV ADV. P.G. JAYASHANKAR PGJ
BY ADV. SRI.G.KEERTHIVAS
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
13.09.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WA No.1212 of 2024
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JUDGMENT
============
Dr. A.K.Jayasankaran Nambiar, J.
The petitioner in W.P(C)No.42345 of 2023 is the
appellant herein aggrieved by the judgment dated 11.04.2024
in the Writ Petition. The brief facts necessary for disposal of
this Writ Appeal are as follows:
2. The appellant had impugned Ext.P1 assessment
order before this Court in the Writ Petition when confronted
with recovery steps for recovery of the amounts confirmed
against him by the assessment order. It was the case of the
appellant that against Ext.P1 assessment order he has
preferred Ext.P2 appeal and Ext.P2(a) stay petition for the
assessment year 2016-17 under the Income Tax Act. The
apprehension of the appellant was that even before
consideration of the stay petition there would be recovery
steps initiated by the respondents for recovery of the amounts
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confirmed against the appellant by Ext.P1 assessment order.
3. The learned Single Judge who considered the
matter directed the respondents to consider and pass orders
on the stay petition if it was not possible to finally hear the
appeal expeditiously. The learned Single Judge, however, did
not grant an absolute stay of recovery proceedings pending
disposal of the stay petition by the respondents but directed
the payment of 15% of the outstanding demand within two
weeks as a condition for such stay. It is for this limited relief
that the appellant is before us through the present appeal.
4. We have heard the learned counsel for the
appellant and the learned Standing counsel for the Income Tax
Department.
In our view, since the learned Single Judge had
relegated the appellant to the alternate remedy before the
statutory authority it was incumbent upon the learned Judge to
protect the appellant from recovery proceedings pending
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disposal of the petition by the respondent appellate authority.
Accordingly, we modify the impugned judgment of the learned
Single Judge to the limited extent of clarifying that pending
disposal of the stay petition or appeal whichever is earlier by
the appellate authority, the recovery proceedings against the
appellant for recovery of the amounts confirmed against him
by Ext.P1 assessment order shall be kept in abeyance. We also
condone the delay occasioned by the petitioner in filing the
appeal before the appellate authority so that the appellate
authority has the option of considering either the stay petition
or the appeal itself. Save for this limited modification, the rest
of the directions in the impugned judgment are not interfered
with.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
SYAM KUMAR V.M.
JUDGE
smm
